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The first amendment's guarantee of religious freedom and the separation of church and state has during its history of almost a century and threequarters thrown its mantle of protection at one time or another over many religious groups. There is indeed no American to whom it has not directly or indirectly secured the blessings of liberty. Every individual and every group in our Nation has a great stake in its preservation.
Since the adoption of the first amendment, the United States has escaped much of the bitter religious conflict and sectarian strife that have divided other nations of the world and driven men to violence and bloodshed. That good fortune has been due in no small part to two of the truly great contributions the American people have made to Western civilization : the concept of the separation of church and state and the free public school system. The first, by pro tecting religion against the intrusion of civil authority and by making it impossible for the state to become a battleground for sectarian preference and favor, has preserved both our political freedom and our religious freedom. The second, by providing for the education of our children on terms of complete equality and without cognizance of their differences in religious beliefs or disbeliefs, has been the cornerstone of our American democracy. The intrusion of religion upon the public school system both threatens the separation of church and state and challenges the traditional integrity of the public schools. That intrusion, if permitted, will greatly endanger the institutions which have preserved religious and political freedom in the United States and have prevented religious warfare in this Nation. The decision of the Supreme Court in the Regents' Prayer case has warded off that threat. It would be tragic if the beneficial effects of that decision were nullified by any tampering with the Bill of Rights. Respectfully submitted.
Benjamin Aaron, University of California ; Henry J. Abraham, Uni
versity of Pennsylvania ; Norman Abrams, University of California ; Albert R. Beisel, Jr., Boston University ; Curtis J. Berger, Columbia University ; Loren P. Beth, University of Massachusetts; Edward J. Bloustein, New York University; Harry C. Bredemeier, Rutgers University ; William J. Brockelbank, l’niversity of Puerto Rico : Alexander D. Brooks, Rutgers University ; Ralph S. Brown, Jr., Yale University ; Edmond Cahn, New York University; Elwood H. Chisholm, Howard L'niversity; Thomas G. S. Christensen, New York University ; Chapin D. Clark, University of Oregon; Homer H. Clark, Jr., University of Colorado; Robert Emmet Clark, Albuquerque, N. Mex. : William Cohen, University of California ; Daniel G. Collins, New York University ; Rita W. Cooley, New York University ; Thomas M. Cooley II, University of Pittsburgh ; Vern Countryman, Albuquerque, N. Mex.; Robert F. Cushman, Jr., New York University: Norman H. Davies, Carnegie Institute of Technology ; John A. Davis, City College of New York; Norman Dorsen, New York University; Emmett E. Dorsey, Howard University ; Gray Dorsey, Washington University ; Steven B. Duke, Yale University; Henry W. Ehrmann, Dartmouth College; Thomas I. Emerson, Yale University; John H. Fenton, University of Massachusetts; Mark Ferber, Rutgers University; Henry M. Foster, New York University; John P. Frank, Phoenix, Ariz.; Lionel H. Frankel, Wayne State University; Jules Gerard, Washington University ; Edward M. Goldberg, Los Angeles State College; Daniel Goldrich, Michigan State University ; Donald H. Gordon, Wayne State University; Milton Greenberg, Western Michigan University; Howard L. Greenberger, New York University; Don J. Hager, Los Angeles State College; Fowler V. Harper, Yale University ; Reuel G. Hemdahl, University of Louisville; Samuel Hendel, City College of New York; John H. Herz, City College of New York; J. Myron Jacobstein, University of Colorado; Frank R. Kennedy, University of Michigan; Robert B. Kent, Boston University; Louis C. Kesselman, University of Louisville; Donald B. King, Wayne State University; Edward C. King, University of Colorado; Maurice Kirk, Washington University; Maurice Klain, Western Reserve University ; David R. Kochery, University of Buffalo; Milton R. Konvitz, Cornell University; Samuel Krislov, Michigan State University; William M. Kunstler, New York University; Martin Landau, Brooklyn Col
lege; Hiram H. Lesar, Washington University; Werner Levi,
College; Quincy Wright, University of Virginia.
Eric E. Bergsten, State University of Iowa; Donald E. Boles, Iowa
State University ; Arthur E. Bonfield, State University of Iowa ;
July 26, 1962.
DEAR MR. CHAIRMAN: I will appreciate it very much if you will have the attached letter written to me on July 1, 1962, by Mr. H. Larry Ingle inserted in the record of the hearings upon the resolutions which are designed to modify the interpretation placed by the Supreme Court in Engel v. Vitale on the establishment of religion clause of the first amendment. I make this request pursuant to a promise made by me to Mr. Ingle.
In so doing, however, I am constrained to say that the inference of Mr. Ingle that I had not read the opinion of the Court before I made comments upon the same lacks validity. It is of course possible, as Mr. Ingle infers, that I do not always understand what I read. Be this as it may, I do feel constrained to say that my interpretation of the majority opinion does not coincide with Mr. Ingle's.
In my judgment as a lawyer, there was really no necessity for the Court to have handed down any decision whatever in this particular case. Since the regulations of the school authorities in New York did not require the plaintiffs or their children to participate in the saying of the prescribed prayer, the Court ought to have refused to take jurisdiction of the case on the grounds that the plaintiffs had no legal interest entitling them to raise the question decided.
The action of the Court in making an adjudication merely indicates what I conceive to be an unfortunate tendency of a majority of the members of the Court as it is now constituted-a tendency which all too often prompts a majority of the Court to embrace every conceivable opportunity to make decisions on constitutional questions in lieu of following the salutary rule of all other courts to refrain from making decisions on constitutional questions unless such decisions are absolutely required. Sincerely yours,
SAM J. ERVIN, Jr.
WRIGHTSVILLE BEACH, N.C., July 1, 1962.
DEAR SENATOR Ervin: I was shocked and dismayed by your comments on the Supreme Court decision in Engel v. Vitale, reported on pages 10874 and 10875 of the June 26 Congressional Record. What was even more astounding is that many of us believe you to be a leading constitutional authority. Yet your statements indicated that you, like most of your colleagues in both Houses of Congress, had not read, or at least understood, the majority opinion in this case before you spoke about it.
The Supreme Court did not in its decision segregate God, as your statement averred; it merely asserted that the State of New York could not officially write or require to be said any prayer. The decision does not relate to speaking of God at public occasions, but of the unconstitutionality of a State requiring religious, qua religious, exercises. The decision was thus not opposed to prayer, to God, to religion, or to the best interests of the country. It does militate against the establishment of a religion by degrees, for once the legitimacy of a required nonsectarian prayer is recognized, a sectarian prayer would be the next step. This is one of the prices we pay for having a doctrine of church-state separation.
As a historian, I would like to clear up one other misstatement: Although Franklin did propose that the Constitutional Convention should pray, no action was taken on his resolution. At least some of the delegates, including Hamilton, spoke against the need for any “foreign intervention.” You may check my facts in Van Doren, “The Great Rehearsal," pages 101 and 102; Warren, "The Making of the Constitution," page 251; and Farrand, “The Framing of the Constitution,” page 94.
Finally, Senator Ervin, as an active member and deacon in the Presbyterian Church and as an American citizen, I applaud the decision in Engel v. Vitale. I would suggest that the best interest of religion will better be served when it relies upon the voluntary adherence of individuals to its doctrines. I would sincerely question that religion, religion, that is, which is best shown in the lives of believers, can be instilled by a process of rote. Prayers may be a good way to begin a school day, but their impact would certainly be better for all concerned if they came from the individual rather than the state.
I hope therefore that you will use all your influence to oppose any constitutional amendment to water down our time-tested doctrine of church-state separation.
I would appreciate it if this letter could be incorporated in any hearings which
H. LARRY INGLE,
U.S. SENATE, COMMITTEE ON BANKING AND CURRENCY,
August 11, 1962. Mr. L. P. B. LIPSCOMB, U.S. Senate, Judiciary Committee, Washington, D.C.
DEAR MR. LIPSCOMB: I shall appreciate your kindness in including in your published hearings on the New York Prayer case of Engel v. Vitale the enclosed statement that I made on the floor of the Senate. With best wishes, I am, Sincerely yours,
A. WILLIS ROBERTSON.
[From the Congressional Record, Aug. 10, 1962)
AN ESTABLISHMENT OF RELIGION Mr. ROBERTSON. Mr. President, as soon as I learned that the U.S. Supreme Court in the now celebrated New York Prayer case of Engel v. Vitale had held that a 22-word nonsectarian prayer, prepared by the joint action of Protestants, Catholics, and Jews in the State of New York and promulgated by its State board of regents for use in public schools on a voluntary basis, violated the first amendment, I said on the floor of the Senate that the Supreme Court had misconstrued that amendment.
Subsequently, in testimony before the Senate Judiciary Committee, I contended that the amendment should be construed in the manner intended by those who framed it and, to that end, I quoted Thomas Jefferson as saying in a letter to William Johnson of June 12, 1823 :
“The capital and leading object of the Constitution was to leave with the States all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other States : to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it; and in favor of the States in the former, if possible to be so construed ***. On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
At that time Jefferson was complaining of the position taken by Chief Justice John Marshall that the Supreme Court had the power to nullify State laws. Jefferson claimed, and of course correctly so, that no such power was definitely granted the Supreme Court by the Constitution and that if the Supreme Court would interpret the 10th amendment in the spirit manifested by the ratifying States it would have to give the States the benefit of all possible doubts on all Federal powers not specifically delegated to the Federal Government by the Constitution. And so at the outset of the decision of the Supreme Court in the New York Prayer case we have jurisdiction to invalidate a State law, concerning the use of a prayer in public schools, taken by a Federal court purely by assumption and not through any authority delegated to it by the Constitution itself.
The next step taken by the Supreme Court in violation of the 10th amendment was in holding that the 14th amendment automatically related to the States all other amendments to the Constitution including the Bill of Rights. That again is a pure assumption of power, because those who framed and adopted the 14th amendment were dealing exclusively with the future protection of the civil rights of those in the Nation who but recently had emerged from slavery.
The third step taken by the Supreme Court in violation of the 10th amendment in the New York Prayer case was when it deliberately distorted the meaning of the 1st amendment. Even if it be conceded that the "due process" clause of the 14th amendment automatically related the 1st amendment to State acts, the 14th amendment could certainly put nothing in the 1st amendment that was not placed there by those who framed it.
In my testimony before the Senate Judiciary Committee in connection with an effort in the U.S. Senate in 1854 to abolish the office of chaplain in the Army, Navy, and at West Point, at Indian stations, and in both Houses of Congress, I quote Representative James Meacham, of Vermont, who prepared the report of the Judiciary Committee in rejecting the proposal, as saying:
'Another article supposed to be violated is article 1 of amendments :
‘Congress shall make no law respecting an establishment of religion.' Does your present practice violate that article? What is an establishment of religion? It must have a creed, defining what a man must believe; it must have rites and ordinances, which believers must observe; it must have ministers of defined qualifications, to teach the doctrines and administer the rites; it must have tests for the submissive, and penalties for the nonconformist. There never was an established religion without all these."
In view of the fact that in a concurring opinion, Mr. Justice Douglas claimed that to be consistent the Supreme Court would have to outlaw all laws relating the employment by the Government of chaplains, it will be interesting to see whether Mr. Justice Black, who wrote the opinion of the Court in the New York Prayer case, will in the three prayer cases that will come before the Court next October, find an excuse in his footnote to the New York case for refusing to extend the application of the New York school doctrine to the use of the Lord's Prayer in Maryland and to the use of religious hymns and art in the schools of Florida.
In any event, when the Supreme Court acts next October it will not be able to claim ignorance of the law if at that time it continues to misconstrue the meaning of the words “establishment of religion" as used by the First Congress that framed the first 10 amendments, commonly called our Bill of Rights.
No one can successfully challenge the history of the first amendment as recently presented to the Senate Judiciary Committee by the distinguished Bishop Pike, of California, or his conclusion that, as used in the first amendment, the the words "establishment of religion” clearly referred to the establishment of a religious sect or a religious organization commonly referred to as a church.
Since that time, Mr. Stewart Robb, of Jersey City, N.J., has written an article on the New York Prayer case in which he establishes beyond a shadow of a doubt that the Supreme Court in the New York case misinterpreted the meaning of the first amendment. Incidentally, Mr. Robb is a Canadian scholar and writer with degrees from Manitoba University and Oxford and his books have been published in this country by Dutton, Scribner & Doubleday.
Mr. President, I ask unanimous consent to have printed in the Record at this point an article by Mr. Stewart Robb, entitled "An Establishment of Religion."
(There being no objection, the article was ordered to be printed in the Record, as follows:)
AN ESTABLISHMENT OF RELIGION
(By Stewart Robb)
PART 1. WHAT IT MEANT AT THE TIME OF ITS ADOPTION
After all, an amendment to the Constitution should be read in a sense most obvious to the common understanding at the time of its adoption.—Justice Felix Frankfurter.
Had the Thirteen States thought the clause in the first amendment “respecting an establishment of religion” might be used as a weapon against school prayers they would not have ratified the Constitution.
The true meaning of the amendment was much on their minds. Its wording was specific. It did not apply to school prayers, which were approved of even by that extraordinary man who did more than anyone else to bring about the complete separation of church and state.
Yet Justice Black, in his statement of the majority decision of the U.S. Supreme Court against the Long Island school prayer, writes :
“The establishment clause, unlike the free exercise clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion, whether those laws operate directly to coerce nonobserving individuals or not."
Forsooth, to establish an official religion is now to have children recite a nondenominational school prayer, such as the following:
“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country."
To apply the “establishment of religion" clause to such a prayer, or to any prayer, will be proved to be a gross misreading of the intentions of the men of the Constitution. To demonstrate the Supreme Court error it is only